FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

April 13, 2006

THOMAS K. KAHN

CLERK

Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by*

designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT________________________

Nos. 04-16231 & 05-11303________________________

BIA No. A78-660-016

GERMAR SCHEERER,

Petitioner,

versus

UNITED STATES ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of theBoard of Immigration Appeals_________________________

(April 13, 2006)

Before BLACK, HULL and FARRIS , Circuit Judges.*

BLACK, Circuit Judge:

Because Scheerer’s removal and asylum proceedings commenced after April 1, 1997,1

the permanent provisions of IIRIRA govern his petitions for review.

Section 130, captioned “Volksverhetzung” (Incitement of the Masses), criminalizes, in2

relevant part, publicly approving of, denying, or otherwise trivializing an act committed under2

Germar Scheerer petitions this Court for review of two Board of

Immigration Appeals (BIA) decisions. First, Scheerer seeks review of the BIA’s

decision affirming, without opinion, an immigration judge’s (IJ’s) order

(1) denying his application for asylum and withholding of removal under the

Immigration and Nationality Act (INA), 8 U.S.C. §§ 1158, 1231(b)(3), as amended

by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996) (amended by the REAL ID

Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (2005)), and (2) finding his1

application frivolous. Second, Scheerer challenges the BIA’s determination that,

as an arriving alien in removal proceedings, he was ineligible to reopen his

proceedings for an adjustment of status pursuant to 8 C.F.R. § 1245.1(c)(8). After

review, we grant the petitions in part, and deny in part.

I. BACKGROUND

Scheerer, a native and citizen of Germany, fled his homeland in 1995 after

he was convicted and sentenced to 14 months’ imprisonment for inciting racial

hatred in violation of the German Penal Code, Strafgesetzbuch [StGB] art. 130,

§§ 3-5 (F.R.G.) (Section 130). A chemist, Scheerer published a report, based on2

the rule of National Socialism in a manner capable of disturbing the public order. StGB art. 130,§§ 3-5.

3

samples taken from the site of the Auschwitz concentration camp, which alleged

the gas and delousing chambers in which mass killings occurred manifested no

residual chemical signs of Zyklon B use. From this, Scheerer inferred the mass

killings that occurred during the Holocaust could not have happened as is

commonly believed. The highest court in Germany upheld his conviction and

sentence.

To avoid his sentence and likely future prosecution in Germany, Scheerer

fled to Spain in March 1996, and, fearing extradition, to England in June 1996.

After a series of newspaper articles urged his extradition, Scheerer fled to the

United States, entering this country on August 9, 2000, as a conditional parolee

with a departure date of no later than November 18, 2000.

Scheerer filed an application for asylum on October 17, 2000. On

February 1, 2001, the Immigration and Naturalization Service (INS, now the

Department of Homeland Security (DHS)) issued him a Referral Notice, informing

Scheerer that his application was being referred to an IJ, to whom he could again

direct his asylum request. On April 2, 2001, the INS issued Scheerer a Notice to

Appear, finding him removable pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) for

failure to possess a valid entry document.

As Scheerer renewed his asylum application in these removal proceedings, his3

application was deemed to state claims for both asylum and withholding of removal. See 8C.F.R. § 208.3(b) (“An asylum application shall be deemed to constitute at the same time anapplication for withholding of removal . . . .”).

The BIA first entered an order affirming the IJ’s decision on September 17, 2004. To4

correct a defect in the service of that decision, however, the BIA vacated that order, reinstatedthe proceedings, and reissued its affirmance on November 8, 2004.

4

An IJ conducted several hearings on Scheerer’s asylum application from

September 2001 until June 2003, ultimately issuing a decision finding, in relevant

part: (1) Scheerer was removable as charged in the Notice to Appear; (2) Scheerer

presented no cognizable claim of past persecution or a well-founded fear of future

persecution entitling him to asylum or withholding of removal; and (3) Scheerer’s3

asylum application was frivolous. Scheerer appealed the IJ’s order, and the BIA

affirmed without opinion on November 8, 2004.4

On December 7, 2004, Scheerer moved the BIA to reopen his case for an

adjustment of status to that of a lawful permanent resident alien based on his

September 11, 2004, marriage to a United States citizen. The BIA denied his

motion on March 3, 2005, finding Scheerer, an arriving alien in removal

proceedings, was subject to a regulatory bar, 8 C.F.R. § 1245.1(c)(8), which

rendered him ineligible to apply for adjustment of status. Scheerer then filed two

timely petitions for review of both BIA decisions with this Court, which we

consolidated and docketed for oral argument.

See Weng v. U.S. Att’y Gen., 287 F.3d 1335, 1337 (11th Cir. 2002) (stating, under the5

permanent provisions of IIRIRA, “even if a petition for review is filed, IIRIRA permits the[DHS] to remove aliens immediately following a BIA decision, and allows aliens to continuetheir appeals from abroad”); see also 8 U.S.C. § 1252(b)(3)(B) (replacing 8 U.S.C. § 1105a(c)).

5

In November 2005, Scheerer was removed to Germany after this Court

denied his emergency motion to stay removal pending this appeal. Despite his

removal, Scheerer’s appeal continues unabated and raises three issues: (1) whether5

the BIA erred in denying his petition for asylum and withholding of removal;

(2) whether the BIA erred in finding his asylum application was frivolous; and

(3) whether the Attorney General exceeded his authority in promulgating 8 C.F.R.

§ 1245.1(c)(8).

II. DISCUSSION

A. Claim for Asylum and Withholding of Removal

Where the BIA summarily affirms the IJ’s decision, we review the IJ’s

decision as if it were the BIA’s. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th

Cir. 2001). We review the IJ’s denial of an asylum application under a “substantial

evidence” standard. “The [IJ’s] factual determination that [an alien] is removable

and not entitled to asylum must be upheld if it is supported by substantial

evidence.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001).

“[A] denial of asylum may be reversed only if the evidence presented by the

6

applicant is so powerful that a reasonable factfinder would have to conclude the

requisite fear of persecution exists.” Id.

To be eligible for asylum, the applicant bears the burden of proving statutory

“refugee” status. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a). That is, the

alien must, with specific and credible evidence, establish (1) past persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion; or (2) a well-founded fear of future persecution on account of a

statutorily-protected ground. See 8 C.F.R. § 208.13(b).

An alien may establish past persecution or a well-founded fear of future

persecution under a theory of imputed political opinion where he shows a political

opinion was correctly or incorrectly attributed to him and he was persecuted

because of that opinion. See Al Najjar, 257 F.3d at 1289. Fear of prosecution

under fairly administered laws, on the other hand, does not ordinarily entitle an

alien to asylum or withholding of removal. See, e.g., Barreto-Claro v. U.S. Att’y

Gen., 275 F.3d 1334, 1340 (11th Cir. 2001) (citing Janusiak v. INS, 947 F.2d 46

(3d Cir. 1991)). If, however, the alien shows the prosecution is based on a

statutorily-protected ground, and if the punishment under that law is sufficiently

extreme to constitute persecution, the law may provide the basis for asylum or

withholding of removal even if the law is generally applicable. See Chang v. INS,

7

119 F.3d 1055, 1060-61 (3d Cir. 1997); Abedini v. INS, 971 F.2d 188, 191-92 (9th

Cir. 1992); Behzadpour v. United States, 946 F.2d 1351, 1353 (8th Cir. 1991).

Scheerer relies on two theories to argue the IJ erred in holding he failed to

establish statutory “refugee” status. First, characterizing his report as purely

scientific, historical, and factual, Scheerer contends the German government

ascribed an anti-Semitic ideology to his research, thereby persecuting him under

Section 130 for an imputed political opinion. Second, Scheerer argues he was

persecuted under a generally-applicable law because his prosecution under Section

130 was politically motivated and resulted in disproportionately severe

punishment. We reject both arguments.

As to Scheerer’s first argument, the administrative record is devoid of any

evidence that the German government ascribed a political opinion to him and then

punished him for that imputed belief. Rather, as the IJ held, the evidence only

reflects that Scheerer was “held to account by a highly developed and sophisticated

legal system, . . . received due process, was convicted, and sentenced to a term well

below the statutorily established maximum.” Substantial evidence thus supports

the IJ’s conclusion that the only inference to be drawn from the record is that

“[Scheerer] has been subjected to legitimate prosecution” in Germany. Scheerer

has, therefore, failed to produce sufficient evidence to compel a finding that he

Specifically, the IJ referred to the cases of Günter Deckert and Otto Remer, who were6

sentenced to 24 months’ and 20 months’ imprisonment, respectively, for the same crime.

In holding Scheerer’s punishment is not persecutory, we do not mean to suggest a7

sentence of 14 months’ imprisonment can never constitute persecution. We merely hold that, on8

suffered past persecution, or has a well-founded fear of future persecution, on

account of an imputed political opinion.

Turning to his second argument, substantial evidence supports the IJ’s

conclusion that Scheerer cannot establish past persecution, or a well-founded fear

of future persecution, under a generally-applicable law. We need not address

whether Scheerer’s prosecution under Section 130 was politically motivated

because he failed to establish his sentence to 14 months’ imprisonment was, as he

argues, “extreme and disproportionate” punishment rising to the level of

persecution. Scheerer offers no substantive argument on this point, relying instead

on conclusory speculation from the lawyer who defended him in his German

prosecution that “the sentence appears to be inappropriately high.” The record

simply does not support this assertion. As the IJ emphasized, Scheerer’s sentence

was well below the statutory maximum of 5 years’ imprisonment and others

convicted of the same crime have received significantly harsher sentences. We6

thus agree with the IJ that “[t]he totality of the record does not reveal any

substantial basis for finding [Scheerer’s] 14-month sentence to be disproportionate,

and either especially unconscionable or merely a pretext.” As a result, Scheerer7

this particular record, Scheerer’s sentence was not, as he contends, “extreme anddisproportionate” punishment rising to the level of persecution.

Because he has failed to demonstrate he is eligible for asylum, Scheerer has necessarily8

failed to meet the higher burden of proof required for withholding of removal. See Al Najjar,257 F.3d at 1292-93, 1303.

9

has failed to carry his burden of establishing past persecution, or a well-founded

fear of future persecution, due to his prosecution under a generally-applicable

German law.

On this record, substantial evidence supports the IJ’s conclusions that

Scheerer was unable to establish past persecution, or a well-founded fear of future

persecution, either on account of an imputed political opinion or under a generally-

applicable law. We accordingly affirm the denial of Scheerer’s claim for asylum

and withholding of removal. 8

B. Frivolous Asylum Application

Scheerer next argues the IJ erred in finding his asylum application was

frivolous. He asserts, more specifically, the finding lacks support for two reasons.

First, Scheerer argues the IJ based the frivolousness finding on a determination that

he was not credible, without concluding a material element of his asylum

application was deliberately fabricated. Second, he contends he was not afforded

an opportunity to account for any discrepancies or implausible aspects of his claim.

10

“We review de novo the statutory interpretation finding by the [BIA] that [an

applicant] filed a frivolous asylum application under Section 1158(d)(6).”

Barreto-Claro, 275 F.3d at 1338. “This plenary review is, however, tempered with

deference to the [BIA’s interpretation],” if reasonable. Id.

If an alien knowingly files a frivolous application for asylum having

received notice of the consequences of filing such a frivolous application, the alien

is permanently ineligible to receive immigration benefits. 8 U.S.C.

§ 1158(d)(4)(A), (d)(6). Under 8 C.F.R. § 208.20:

[A]n asylum application is frivolous if any of its material elements isdeliberately fabricated. Such finding shall only be made if theimmigration judge or [BIA] is satisfied that the applicant, during thecourse of the proceedings, has had sufficient opportunity to accountfor any discrepancies or implausible aspects of the claim.

Because the consequences of a finding of frivolousness are so severe, 8

C.F.R. § 208.20 delineates a specific framework the IJ must follow before making

such a finding. The IJ must first find material aspects of the alien’s asylum

application were demonstrably false and such fabrications were knowingly and

deliberately made. Id.; see also Barreto-Claro, 275 F.3d at 1339. The alien must

then be given ample opportunity during his hearing to address and account for any

deliberate, material fabrications upon which the IJ may base a finding of

frivolousness. Id. Under 8 C.F.R. § 208.20, therefore, a finding of frivolousness

The Seventh Circuit reached the same conclusion in Lin v. Gonzales, 140 Fed. Appx.9

621, 623-24 (7th Cir. 2005). As an unpublished opinion, however, Lin lacks precedentialauthority and is not binding on the Seventh Circuit. See 7th Cir. R. 53; Nazarova v. INS, 171F.3d 478, 485 (7th Cir. 1999).

11

cannot stand without a specific finding in the first instance that the applicant

deliberately fabricated material portions of his asylum application. Id.

We have never addressed, however, whether a finding of frivolousness

under 8 C.F.R. § 208.20 flows directly from an adverse credibility determination.

In Muhanna v. Gonzales, on the other hand, the Third Circuit held an adverse

credibility determination alone cannot support a finding of frivolousness; rather,

the IJ must make specific findings as to which material elements of the asylum

application were deliberately falsified, as required by 8 C.F.R. § 208.20. 399 F.3d

582, 588-89 (3d Cir. 2005). Noting the IJ primarily based the finding of

frivolousness on her opinion that the alien was “someone who is not honest at all,”

the Third Circuit held:

[U]nder 8 C.F.R. § 208.20 a finding of frivolousness does not flowautomatically from an adverse credibility determination . . . . Inconsistencies between testimony and an asylum application, whilecertainly relevant to a credibility determination that may result in thedenial of an applicant’s asylum claim, do not equate to a frivolousnessfinding under Section 1158(d)(6), which carries with it much greaterconsequences. It is because of those severe consequences that theregulation requires more: a finding of deliberate fabrication of a“material element” of an application, plus an opportunity for the aliento account for inconsistencies.

Id. 9

The IJ found Scheerer was not credible because he admitted to using the pen name10

“Ernst Gauss,” and referred to Otto Remer (who, like Scheerer, was convicted for inciting racialhatred through his public questioning of the Holocaust) as a “friend” and “another German.” SeeOtto Remer, 84, Nazi Officer; Helped Foil Anti-Hitler Plot, N.Y. Times, October 9, 1997, atD22.

12

We agree with the Third Circuit that because 8 C.F.R. § 208.20 mandates the

IJ specifically find material elements of an asylum application were deliberately

fabricated, an adverse credibility determination alone cannot support a finding of

frivolousness. As in Muhanna, the IJ in this case did not support the finding of

frivolousness by reference to any specific material falsehoods in Scheerer’s asylum

application. Instead, the finding was primarily based on Scheerer’s untenable

defense to his prosecution in Germany, the legal insufficiency of his asylum claim,

and the IJ’s conclusion that Scheerer “is not above falsehood.” The IJ thus10

considered the legal insufficiency of Scheerer’s claim and an adverse credibility

determination to be coextensive with a finding of frivolousness without examining

what specific, material aspects of Scheerer’s application were knowingly false.

These findings were insufficient to support a finding of frivolousness. The IJ,

therefore, erred in concluding Scheerer’s application for asylum was frivolous and

we accordingly vacate that part of the BIA’s November 8, 2004, decision affirming

that finding.

After carefully considering the other arguments raised with respect to this issue, we11

conclude they are without merit and do not discuss them.13

C. Validity of 8 C.F.R. § 1245.1(c)(8)

Finally, Scheerer contends the regulatory bar prohibiting him from applying

for an adjustment of status, 8 C.F.R. § 1245.1(c)(8), is invalid because it conflicts

with congressional intent as expressed in the governing statute, 8 U.S.C. § 1255(a).

For the reasons set forth below, we agree.11

We review questions of statutory interpretation and other issues of law de

novo. See United States v. Trainor, 376 F.3d 1325, 1330 (11th Cir. 2004). When

reviewing an agency’s interpretation of a statute it administers, however, we apply

the two-step test articulated in Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 842-44, 104 S. Ct. 2778, 2781-82 (1984). See also Lewis v.

Barnhart, 285 F.3d 1329, 1333 (11th Cir. 2002). First, we must determine

“whether Congress has directly spoken to the precise question at issue.” Chevron,

467 U.S. at 842, 104 S. Ct. at 2781. “If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id. at 842-43, 104 S. Ct at 2781. If

Congress has not directly addressed the matter, or if the statute is ambiguous with

respect to the matter, we move to Chevron’s second step to decide “whether the

In response to early criticism of the regulation, the Attorney General referenced the12

statute it implements. “[I]t is noted,” the Attorney General stated, “that [8 U.S.C. § 1255]clearly and unambiguously states that adjustment of status is a discretionary decision, subject tosuch regulatory limitations as the Attorney General may prescribe.” 62 Fed. Reg. 10312, 10326-27 (1997).

14

agency’s [regulation] is based on a permissible construction of the statute.” Id. at

843, 104 S. Ct. at 2782.

Where Congress has not merely failed to address a precise question, but has

given an “express delegation of authority to the agency to elucidate a specific

provision of the statute by regulation,” the agency’s “legislative regulations are

given controlling weight unless they are arbitrary, capricious, or manifestly

contrary to the statute.” Id. at 843-44, 104 S. Ct. at 2778. Indeed, “judicial

deference to the Executive Branch is especially appropriate in the immigration

context where officials ‘exercise especially sensitive political functions that

implicate questions of foreign relations.’” INS v. Aguirre-Aguirre, 526 U.S. 415,

425, 119 S. Ct. 1439, 1445 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110, 108 S.

Ct. 904, 915 (1988)).

To assess the validity of 8 C.F.R. § 1245.1(c)(8), we begin with the statute it

implements, 8 U.S.C. § 1255. Under that provision:12

The status of an alien who was inspected and admitted or paroled intothe United States . . . may be adjusted by the Attorney General, in hisdiscretion and under such regulations as he may prescribe, to that ofan alien lawfully admitted for permanent residence if (1) the alienmakes an application for such adjustment, (2) the alien is eligible to

15

receive an immigrant visa and is admissible to the United States forpermanent residence, and (3) an immigrant visa is immediatelyavailable to him at the time his application is filed.

8 U.S.C. § 1255(a). In addition to this general adjustment provision, the statute

renders several categories of aliens ineligible for such relief. Pursuant to 8 U.S.C.

§ 1255(c), alien crewmen, aliens who accept unauthorized employment or are in

unlawful immigration status, aliens deportable for engaging in terrorist activities,

and certain aliens with visa defects or other problems with their immigration status

cannot avail themselves of an adjustment of status under subsection (a).

The regulation at issue, 8 C.F.R. § 1245.1(c)(8), operates within this

statutory framework to bar another category of aliens from applying for adjustment

of status, providing:

The following categories of aliens are ineligible to apply foradjustment of status to that of a lawful permanent resident alien under[8 U.S.C. § 1255]

. . . .

Any arriving alien who is in removal proceedings pursuant to [8U.S.C. §§ 1225(b)(1) or 1229a].

8 C.F.R. § 1245.1(c)(8) is identical to 8 C.F.R. § 245.1(c)(8). Section 1245.1(c)(8)13

applies to the Executive Office for Immigration Review in the Department of Justice, while§ 245.1(c)(8) applies to the immigration agencies in the DHS. As part of the Homeland SecurityAct of 2002, Pub. L. No. 107-296, 116 Stat. 2125 (2002), which abolished the INS andtransferred its functions to the DHS, the regulations were duplicated from Chapter I, renumberedin the 1000 series, and placed in Chapter V of Title 8. While we cite to the Chapter Vregulations, the same regulations can be found in Chapter I.

16

8 C.F.R. § 1245.1(c)(8). Our task is thus to determine whether, under Chevron’s13

two-step analysis, this regulation accords with congressional intent as manifested

in the governing statute, 8 U.S.C. § 1255.

We are not the first circuit court to consider this question. One circuit has

upheld 8 C.F.R. § 1245.1(c)(8), while three circuits have invalidated it.

In Mouelle v. Gonzales, the Eighth Circuit held 8 C.F.R. § 1245.1(c)(8) is valid as

a reasonable exercise of the Attorney General’s rule-based discretion under § 1255.

416 F.3d 923, 930 (8th Cir. 2005). The court first opined that because § 1255

gives the Attorney General discretionary authority to grant or deny relief on the

merits, he could, consistent with that authority, promulgate a functionally-

indistinguishable regulation rendering a particular class of aliens ineligible to apply

for relief in the first instance. Id. at 928-30. Thus, under Chevron’s first step, the

court determined § 1255 is ambiguous regarding the Attorney General’s authority

to make eligibility determinations. Id. at 929-30. Under Chevron’s second step,

the court held the regulation is a permissible construction of the governing statute

because the Attorney General’s justification for the regulation was reasonable, and

17

the regulation accords with Congress’s intent under IIRIRA to expedite the

removal of arriving aliens. Id. Accordingly, the Eighth Circuit upheld 8 C.F.R.

§ 1245.1(c)(8).

The First, Third, and Ninth Circuits, however, have invalidated the

regulation. The First and Ninth Circuits resolved the question under Chevron’s

first step, noting while § 1255 gives the Attorney General discretionary authority to

grant relief on the merits, Congress carefully and unambiguously defined by statute

the categories of aliens eligible to apply, in the first instance, for adjustment of

status. Succar v. Ashcroft, 394 F.3d 8, 29 (1st Cir. 2005); accord Bona v.

Gonzales, 425 F.3d 663, 668-70 (9th Cir. 2005). Both circuits opine that when

Congress intended to limit those categories of aliens eligible to apply for relief, it

specifically and explicitly did so in § 1255(c), even providing for exceptions to

those exclusions in § 1255(i). See Succar, 394 F.3d at 25-26; Bona, 425 F.3d at

669. The First and Ninth Circuits reason because 8 C.F.R. § 1245.1(c)(8) is an

eligibility restriction which “redefines certain aliens as ineligible to apply for

adjustment of status . . . whom a statute, 8 U.S.C. § 1255(a), defines as eligible to

apply[,]” the regulation is invalid as contrary to Congress’s clearly expressed

intent. Succar, 394 F.3d at 9; accord Bona, 425 F.3d at 670.

The Third Circuit joined the First and Ninth Circuits in invalidating 8 C.F.R.

§ 1245.1(c)(8), albeit under different reasoning. Zheng v. Gonzales, 422 F.3d 98

Lopez involved 18 U.S.C. § 3621(e)(2)(B), which gives the Bureau of Prisons (BOP)14

discretionary authority to grant an early release to prisoners convicted of nonviolent offenseswho successfully complete a substance abuse treatment program. Prisoners convicted of aviolent offense are not eligible for such relief. Id. Pursuant to its authority under§ 3621(e)(2)(B), the BOP issued a regulation, 28 C.F.R. § 550.58(a)(1)(vi)(B), denying earlyrelease to prisoners who commit a felony involving a firearm. Lopez argued the regulation wasinvalid because “by identifying a class of inmates ineligible for sentence reductions under§ 3621(e)(2)(B), . . . Congress has barred the Bureau from identifying further categories ofineligible inmates.” Lopez, 531 U.S. at 239, 121 S. Ct. at 721. The Supreme Court rejected theargument that the statutory eligibility standards preempted further regulation. See id. at 240-41,121 S. Ct. at 721-22. Additionally, the Court validated the regulation under Chevron’s two-stepanalysis, holding the statute did not answer “the precise question at issue,” and the regulationwas based on a reasonable interpretation of the statute. Id. at 241-45, 121 S. Ct. at 722-24.

18

(3d Cir. 2005). The Third Circuit held, under Chevron’s first step, that § 1255’s

detailed eligibility standards do not indicate a clear congressional intent to preempt

the field from further regulation. Id. at 116. Under Chevron’s second step,

however, the Third Circuit held 8 C.F.R. § 1245.1(c)(8) is not based on a

permissible construction of the statute because it is inconsistent with the eligibility

standards set forth in § 1255. Id. at 119-20.

We join in holding 8 C.F.R. § 1245.1(c)(8) is invalid and follow the Third

Circuit’s analysis as articulated in the detailed and comprehensive opinion written

by Judge Becker on behalf of the panel. As to the first step of the

Chevron analysis, Scheerer urges us to hold § 1255’s detailed eligibility standards

indicate a clear congressional intent to preempt the field from further regulation.

The Supreme Court, however, rejected this line of reasoning in Lopez v. Davis, 531

U.S. 230, 243-44, 121 S. Ct. 714, 723-24 (2001), and we decline to follow it here. 14

19

See also Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356, 372, 93 S. Ct.

1652, 1662 (1973) (explaining statutory disclosure requirements for some

transactions does not preclude agency from imposing similar requirements on other

transactions). Because precedent establishes that statutory eligibility standards

alone do not reflect a clear congressional intent to preempt further agency

regulation, we find, under the first step of the Chevron analysis, § 1255 is at best

ambiguous as to whether the Attorney General may regulate eligibility to apply for

adjustment of status.

Turning to the second step of the Chevron analysis, we must determine

whether 8 C.F.R. § 1245.1(c)(8) is “based on a permissible construction of the

statute.” Chevron, 467 U.S. at 843, 104 S. Ct. at 2782. We begin with the

governing statute, § 1255, which grants eligibility to adjust status to any alien

“who was inspected and admitted or paroled into the United States.” 8 U.S.C.

§ 1255(a) (emphasis added). Paroled aliens, deemed “arriving aliens” under 8

C.F.R. § 1.1(q), are not admitted to the United States; rather, they are treated as

“applicants for admission.” 8 U.S.C. § 1182(d)(5)(A); see also §§ 1101(a)(13)(B),

1225(a)(1). Applicants for admission, in turn, “shall be detained for a [removal]

proceeding” if an immigration officer determines they are “not clearly and beyond

a doubt entitled to be admitted.” Id. § 1225(b)(2)(A). The statute thus defines

parolees as arriving aliens—i.e., applicants for admission, who are placed in

Indeed, in Succar “it was represented in the briefs before [the First Circuit] that the15

‘majority of the intended beneficiaries of parolee adjustment of status are in removalproceedings.’ The Attorney General [did] not dispute this statement.” Succar, 394 F.3d at 21. As the Third Circuit observed, however, “[m]ore compelling than any statistic . . . is the statutorystructure that indicates that parolees will, by default, be in removal proceedings.” Zheng, 422F.3d at 117.

20

removal proceedings unless they are “clearly and beyond a doubt entitled to be

admitted.” Id. (emphasis added). Given the demanding standard for admission,

paroled aliens are arriving aliens, nearly all of whom are placed in removal

proceedings. It is clear from the statutory text, therefore, that Congress intended15

for virtually all parolees to be in removal proceedings. See Zheng, 422 F.3d at 117.

Section 1255, however, indicates that despite being placed in removal

proceedings, parolees are, as a general class, eligible to apply for an adjustment of

status. The statute explicitly states “[t]he status of an alien who was inspected and

admitted or paroled into the United States . . . may be adjusted by the Attorney

General . . . if (1) the alien makes an application for such an adjustment.” 8 U.S.C.

§ 1255(a) (emphasis added). By its language, then, § 1255 plainly contemplates

that paroled aliens may apply for adjustment of status, though the Attorney General

need not grant it. The vast majority of aliens paroled into the United States will,

however, be in removal proceedings by virtue of the statutory scheme. We thus

conclude that by allowing parolees, as a class, to apply for adjustment of status in

§ 1255, Congress did not intend the mere fact of removal proceedings would

21

render an alien ineligible to apply for adjustment of status. See Zheng, 422 F.3d at

118; see also Succar, 394 F.3d at 25 (“Congress chose not to disqualify from

eligibility all of those aliens ‘inspected and admitted or paroled’ in removal or

other judicial proceedings.”). In sum, the governing statute places parolees in

removal proceedings but also renders them eligible, as a general rule, to apply for

adjustment of status.

Turning to the regulation, 8 C.F.R. § 1245.1(c)(8) excludes “[a]ny arriving

alien in removal proceedings” from applying for adjustment of status. Thus,

whereas the statute, § 1255, contemplates that parolees—arriving aliens, virtually

all of whom are placed in removal proceedings—should be eligible to apply for an

adjustment of status, the regulation, 8 C.F.R. § 1245.1(c)(8), excludes the same

class from eligibility. See Zheng, 422 F.3d at 118-20. Given this intractable

conflict between the statute and the regulation, we hold 8 C.F.R. § 1245.1(c)(8) is

not based on a permissible construction of 8 U.S.C. § 1255, and invalidate the

regulation accordingly. We agree with the Third Circuit that, “[w]hile the statute

may be ambiguous enough to allow for some regulatory eligibility standards, it

does not so totally abdicate authority to the Attorney General as to allow a

regulation, like [8 C.F.R.] § 1245.1(c)(8), that essentially reverses the eligibility

structure set out by Congress.” Zheng, 422 F.3d at 120.

22

In sum we cannot say, in light of Lopez, § 1255’s detailed eligibility

standards evince a clear congressional intent to preempt the Attorney General from

further regulating in the area. Under the first step of the Chevron analysis, § 1255

is, therefore, at best ambiguous as to whether the Attorney General may regulate

eligibility to apply for adjustment of status. Turning to the second step of the

Chevron analysis, it is apparent from the statutory scheme that Congress intended

to allow most paroled aliens to apply for an adjustment of status; the regulation,

however, bars almost all such aliens from eligibility. Thus, the regulation is not

based on a permissible construction of the governing statute.

Because we hold 8 C.F.R. § 1245.1(c)(8) is invalid, we reverse the BIA’s

March 3, 2005, decision relying on the regulation to deny Scheerer’s motion to

reopen his proceedings, and remand the case to the BIA for proceedings consistent

with this opinion.

III. CONCLUSION

For the foregoing reasons, we affirm the denial of Scheerer’s asylum

application, vacate the determination that his asylum application was frivolous,

reverse the BIA’s denial of his motion to reopen his proceedings, and remand the

case for further proceedings consistent with this opinion.

PETITIONS DENIED IN PART, AND GRANTED IN PART.